1. Definitions

For the purposes of this Agreement, the following terms, whenever used with a capital, in both the single and plural form, shall have the meaning as defined hereinafter:

1.1. “Additional Services”

services as described in article 7;

1.2. “Agreement”

These General Terms and Conditions including the Commercial Terms and Annexes;

1.3. “Availability”

the Software is considered available when no priority 1 or priority 2 Defects are open, as described in article 6;

1.4. “Changes”

all changes to the Software as classified in Article 6;

1.5. “Contact persons”

the natural person(s) who represent BAS in this Agreement and the natural person(s) that are capable of legally representing BAS;

1.6. “Data Processing Agreement”

the Data Processing Agreement signed between Parties and attached as Annex 2 which lay down the terms and condition regarding the processing of personal data;

1.7. “Data Migration”

any transfer of Licensee’s data into the Software by BAS, either from previous software systems, data sheets or any other digital or manual source;

1.8. “Documentation”

any manuals, instructions, readme files and other information concerning the Software, made available by BAS as described in the Commercial Terms;

1.9. “Defect”

a defect in the Software that leads to impaired Functionality of the Software;

1.10. “Exceeded Waiting Time”

the cumulative of the time that Response Time and Recovery Time are exceeded;

1.11. “Extension”

an extension of the agreement after the Term or prior Extension for a period described in the Commercial Terms or article 4;

1.12. “Force Majeure”

a situation as described in article 16 of this Agreement;

1.13. “Functionality”

the degree of certainty that the Software is available to use and the processing of data within the Software is done correctly. This means that the processing takes place in accordance with the description thereof in the specifications in Annex 1;

1.14. “GDPR”

regulation (EU) 2016/679, also known as the General Data Protection Regulation;

1.15. “Incident”

an alleged malfunctioning of the Software, which can either be defined as a Defect or as a request for a Non-standard Change;

1.16. “Intellectual Property Rights”

all intellectual property rights, including but not limited to copyrights, trademark rights, rights to software, database rights and patent rights;

1.17. “License fee”

the fee that the Licensee must pay to BAS for the use of the Software as specified in article 5 and the Commercial Terms;

1.18. “License”

the license as described in article 3 of this Agreement;

1.19. “Notification”

the registration of an (alleged) Defect by Licensee at BAS;

1.20. “Party / Parties”

BAS and/or Licensee;

1.21. “Recovery time”

the period between the time of Notification of an Incident and – if the Incident is a Defect – the remedy of that Defect by BAS, whether or not by means of a temporary solution. Recovery time only starts and runs during Working Days in the applicable Service Window;

1.22. “Service Level”

the service level as agreed upon between Parties in article 6 of this Agreement;

1.23. “Software”

the software as a service solution provided by BAS to the Licensee as described in Annex 1;

1.24. “Term”

the term as defined in Commercial Terms;

1.25. “Written / in Writing”

communication via registered mail or via e-mail, e-mails should be sent to e-mail addresses frequently used by Contact Persons to communicate with Licensee;

1.26. “Working Days”

Monday to Friday, excluding Dutch national holidays.

2. Order of Precedence

2.1. The terms and conditions of the Commercial Terms and Annexes form an integral part of each agreement between Parties and shall take precedence over any contrary or inconsistent terms and conditions appearing or referred to in such agreement between Parties. In case of inconsistency between the Commercial Terms and the General Terms and Conditions the Commercial Terms shall prevail unless it involves any terms regarding privacy in which case the Data Processing Agreement shall prevail.

2.2. Any general terms or conditions of the Licensee shall not apply to the Agreement. Any such general terms are explicitly revoked by BAS.

3. Scope of the license

3.1. Under the terms and conditions of this Agreement and subject to payment of the applicable License Fee(s), BAS grants, and Licensee accepts, a non-exclusive, non-transferable, non-sublicensable and revocable license to install, copy and use the Software.

3.2. The Software and Documentation are made available to Licensee as described in the Commercial Terms.

3.3. One (1) license grants Licensee the right to have one (1) employee of the Licensee work with the Software, Licensee will obtain a license for every active user as described in the Commercial Terms.

3.4. Next to the Documentation, BAS shall provide Licensee with a reasonable level of support by means of e-mail, chat, or similar mechanism in the form of consultations, assistance and advice concerning installation, configuration and use of the Software. After the Software is installed and working, any additional support, shall be subject to the agreed terms of article 6 and 7.

3.5. Licensee shall install and use the Software as described in the Documentation.

3.6. The Licensee has no right to (sub)license, sell, assign, modify, translate, decompile, create derivative works or otherwise change or commercially exploit the Software, and/or make available the Software to any third party without the prior, explicit and Written approval of BAS.

3.7. Licensee is not permitted to reconstruct the source code of the Software by means of reverse engineering.

3.8. If Licensee requires information to effect interoperability of the Software with other software, Licensee will request BAS in Writing and with motivation for the necessary information. BAS will then inform the Licensee within a reasonable period whether Licensee can obtain the requested information, and under which condition it is provided.

4. Duration and termination

4.1. After expiry of the Term or an Extension this agreement is automatically extended each time with a period of one (1) year, unless either Party gives the other Party a Written notice of its termination of the Agreement. Such notice shall be given at least three (3) months prior to the expiry of the Agreement.

4.2. Parties are entitled to terminate the Agreement with immediate effect in whole or in part, without obtaining any obligation to compensate for any damage, if one of the following circumstances occurs:

the other party is granted a moratorium of payments (whether or not provisionally);

bankruptcy is requested for the other Party;

the other party is declared bankrupt;

a Party infringes the terms of this Agreement and does not or is unable to remedy such infringement within fourteen (14) days after given Written notice by the other Party.

4.3. BAS is entitled to terminate (“opzeggen”) the Licence without any judicial intervention, with immediate effect and by giving Written notice to the Licensee, if (i) the Licensee infringes the rights of BAS, including but not limited to BAS’s Intellectual Property Rights, (ii) the Licensee uses the Software for unlawful purposes or for purposes contrary to public policy and public decency, (iii) the Licensee uses the Software in such a way that the Software is damaged, modified, interrupted, or is less efficient in any way or (iv) the enterprise of the Licensee is terminated or transferred in whole or in part to a third party.

4.4. Regardless of the above the Agreement ends only if both parties agree in Writing to terminate (“opzeggen”) the Agreement.

4.5. Upon termination of the Agreement for whatever reason, the Licensee shall promptly delete the Software from its devices and return or delete all copies of the Software, including modified copies, if any. The Licensee shall certify such deletion in Writing to BAS.

5. Licence fees

5.1. All agreed fees as described in the Commercial Terms shall be paid in a timely manner and in compliance with the payment conditions agreed upon, regardless whether the Software is used or not.

5.2. All prices are exclusive VAT and other government levies that have been or shall be imposed.

5.3. All invoices and payments shall be in Euro’s unless agreed otherwise in Writing.

5.4. Licensee shall pay invoices within fourteen (14) days after receipt of the invoice.

5.5. BAS reserves the right to increase the License Fee after the at the start of an Extension. In case of modification of the fees, BAS shall notify the new fees to the Licensee in Writing at least sixty (60) days before the modified fee becomes due.

5.6. The License Fee will be indexed annually according to the CPI (2015=100) index.

5.7. If the Licensee fails to pay the fees due on time, statutory commercial interest shall be payable by the Licensee on the outstanding amount without a demand notice of default being required. If the Licensee still fails to pay the amount due after receiving a demand or notice of default, BAS may submit the claim for collection, in which case the Licensee shall also be obliged to pay in addition to the total amount due, all judicial and extrajudicial costs, including all costs charged by an external expert.

5.8. In case of non-payment of any (part of the) License Fee, the Agreement may be terminated by BAS in accordance with article 4 of this Agreement.

5.9. Upon termination of the Agreement for whatever reason, the Licensee shall promptly pay all outstanding License Fees and/or other amounts due.

6. Service Level

6.1. Incidents are reported by Licensee to BAS in Writing, this may be done by sending by making a ticket via support on the support.bas.software website. The person who reports an Incident, will submit a clear description of the Incident. This description will in any case include a substantiation of why the incident qualifies as a Defect rather than a request for Additional Services. In the event of a dispute, the classification given by BAS to the Incident will prevail.

6.2. BAS will always try to resolve Incidents within a reasonable timeframe. If it appears that an Incident does not qualify as a Defect, a BAS employee will contact Licensee in order to determine whether Licensee would like to obtain Additional Services.

6.3. The following service windows apply for this Agreement:

Description

Service Window

Services related to Functionality

Working Days between 8:00 – 17:00 Amsterdam Time

Implementation of Changes based on Additional Services

Working Days between 8:00 – 17:00 Amsterdam Time

Plannable Changes with disruption of Functionality

Working Days and Saturdays between 19:00 – 07:00 and Sundays Amsterdam Time

6.4. The following indications of priority are given to Defects:

Priority

Description

1.

Overall loss of the Functionality

2.

Partial or very annoying disruption of Functionality

3.

Any other Problems which limit the Functionality

6.5. Changes will be classified as follows:

Emergency Changes: changes that must be implemented without delay in order to guarantee Functionality;

Standard Changes: changes that are required for the Software to function according to the described Functionalities. Standard Changes will be communicated with Licensee in advance and are preformed within a predefined lead time. There are two Priority levels: high and low priority Standard Changes.

Non-standard Changes: changes that are customer-specific and non-essential for the functioning of the BAS Cloud Service in general. These changes are regarded to fall under Additional Services.

Emergency Changes and Standard Changes (Priority 1 and 2) are performed on the basis of the Agreement. Non-standard Changes are carried out as Additional Services as described in Article 7.

6.6. Based upon the priority as described in article 6.4 the reaction and Recovery times apply in accordance with the overview in the table below. Response times apply to all Incidents, Recovery times apply only to Incidents that are also a Defect. The given timeframe only starts after the Licensee has provided BAS with sufficient information to comprehend what the Defect is and when the given service Window has started.

Type of change

Response time

Recovery time

Description

Emergency changes

(priority 1)

1 Working day

1 Working day

A report of an Incident will be assessed within the Response time. When an Incident is indeed a Defect, the Defect will be resolved within the corresponding Recovery time. Response and Recovery Time only start and run during the applicable service Window.

Standard changes with high priority

(priority 2)

1 Working day

2 Working days

Standard changes with low priority

(priority 3)

2 Working days

5 Working days

Non-standard changes

3 Working days

–

The report will be assessed within the Response time, when BAS is able to meet the request the Recovery time will be determined in consultation between Parties.

6.7. A Defect is also regarded being resolved if BAS realizes a temporary solution that restores the Functionality of the Software. This temporary solution does not release BAS from the obligation to repair the Defect. If a notification by a temporary solution instead of priority 1 receives the character of a priority 2 Defect, the Recovery time associated with priority 2 shall applies. The same applies for priority 2 Defect being turned into priority 3 Defect.

6.8. In case a Defect can be resolved with a workaround that needs to implemented by the Licensee, Licensee is obliged to give full cooperation to this implementation. If Licensee fails to cooperate, the time between offering the workaround and this full cooperation will not account as the Software not being Available.

6.9. Standard Changes and Non-standard Changes are always requested tin Writing to a Contact Person. Emergency Changes can also be reported to BAS via telephone, when BAS is available via this way at the given moment.

6.10. BAS guaranties an uptime of 99%. The uptime is measured per month. Any down-time due to (i) pre-announced activities (ii) Standard Change requested by Licensee (Priority 3) and (iii) Non-standard Changes does not affect the uptime.

6.11. The uptime is calculated as follows:

Availability – Exceeded Waiting Time

x 100% = Uptime

Total time

6.12. If BAS does not meet this Availability level as described in article 6.11, Licensee will receive a discount on its License Fee. The discount that will be given is 1% for every 0,1% less uptime, with a maximum discount of 100%, which amount will be setoff against the next month’s License fee.

6.13. If BAS does not meet the agreed Service Levels, this will only lead to the consequences described in this article 6.12. Except for the assertion of any claim based on fraud or wilful misconduct, the remedies provided in this article shall be the sole and exclusive legal remedies of the Parties with respect to uptime, Availability and Functionality. BAS shall only be in default after the expiry of the term stated in a written notice of default.

6.14. Parties may differentiate from the provisions in this article in the Commercial Terms.

7. Additional Services

7.1. Additional Services are services that can be performed by BAS, but that are not included in the standard services of the Agreement. Additional services will in principle be charged at Licensee’s expense.

7.2. BAS can provide additional services such as Data Migration creation of new features, training, service or support regarding the Software at terms to be agreed upon between Parties.

7.3. Before Additional Services are performed, a Written price indication will first be issued for approval. Depending on the complexity, a step-by-step plan will be offered.

7.4. BAS always reserves the right to refuse any requests for Additional Services.

7.5. In principle BAS performs Additional Services against a consultancy rate of EUR 125,= per hour. This rate is an indication and BAS may, at its sole discretion, deviate from this rate in its offers for Additional Services.

8. Intellectual Property Rights

8.1. The Licensee acknowledges and agrees that the Software is protected by Intellectual Property Rights. The Intellectual Property Rights relating to the Software are and remain the exclusive property of BAS.

8.2. This Agreement does not grant the Licensee any right or title to the Intellectual Property Rights of BAS, other than the Licences provided by article 3 and 11 of the Agreement, nor does this Agreement in any way constitute a transfer or assignment of the Intellectual Property Rights to the Licensee. This includes any Intellectual Property Rights related to data of users accumulated by the Software.

8.3. All information/data that has been uploaded in the Software by Licensee, may (in anonymized form) be re-used by BAS. Any Intellectual Property Rights that may come into existence relating to the (accumulated) data shall vest with BAS.

8.4. In the event that BAS upon request of the Licensee incorporates any new features or functionalities into the Software, such new features and/or functionalities shall be the sole and exclusive property of BAS, unless explicitly agreed otherwise in Writing.

8.5. BAS shall, at its own expense, defend any claim or proceeding brought against the Licensee based on an allegation that the Software would constitute an infringement of Intellectual Property Rights, provided that the Licensee promptly notifies BAS in Writing of such claim. Licensee shall provide reasonable cooperation and assistance to BAS for the defence of such claim or proceeding. If the Software, or any part thereof, as a result of any suit or proceeding so defended, is held by a court or arbitration panel to constitute infringement of Intellectual Property Rights of third parties, BAS shall at no cost to Licensee either (a) procure for Licensee the right to continue using the Software, or any part thereof, or (b) replace or modify the Software in order to become non-infringing.

8.6. The Licensee shall not infringe the Intellectual Property Rights of BAS or its suppliers or perform any other acts by which the Intellectual Property Rights of BAS or its suppliers or the value of such Intellectual Property Rights could in any way be harmed or negatively affected. This means, without being exhaustive, that the Licensee shall not reproduce, multiply, modify, decompile, reverse engineer, publish, translate, process, rent, exploit, or commercialise the Intellectual Property Rights of BAS, or use them in any other infringing way, entirely or partially, in the original or modified form, for commercial or non-commercial purposes.

8.7. Licensee is not permitted to remove any designation concerning copyrights, trademarks, trade names or other rights of (intellectual) property from the Software, the Documentation and/or any other BAS material.

9. Data Protection

9.1. All the definition and terms used in this Agreement have the same meaning as they do in the GDPR. If a term doesn’t exist in the GDPR, a meaning should be given that is closest to an existing definition in the GDPR.

9.2. Parties shall act in accordance with the provisions of the GDPR and any future national or European statutory and other rules on the processing of personal data that may be in force from time to time. If future statutory and other rules reveal a need to adjust the Agreement, the parties will consult with each other for the purpose of making new arrangements that reflect the meaning of this Agreement as much as possible.

9.3. If the Licensee processes personal data, it will in principle only process general personal data. In no circumstance will BAS accept any responsibility or liability for the processing of sensitive personal data.

9.4. The Software includes the option to add notes to specific customers of Licensee. Licensee will safeguard that the notes added into the Software by Licensee employees will not include any personal data.

9.5. In general BAS shall be considered as the data processor and the Licensee as the data controller. The arrangements regarding data processing are described in the Data Processing Agreement attached as Annex 2 and forming an integral part of the Agreement.

10. Right to audit

10.1. BAS is entitled to investigate whether Licensee uses the Software in a manner that complies with the conditions of the Agreement. Licensee undertakes to cooperate with such an audit. BAS shall bear the costs of such an audit, as long as no infringements of the Agreement are found. If the Licensee is found to infringe the Agreement, Licensee will bear the costs of the audit.

10.2. The Licensee is obliged to inform BAS in case (an) extra employee(s) is/are granted access to the Software. If Licensee fails to inform BAS about extra employees using the Software, Licensee will be obliged to pay 200% percent of the applicable License Fee per License over the months in which insufficient Licenses have been procured. This compensation does not exclude BAS from claiming any other compensation for damages, such as the costs for auditing as described in this article.

11. Promotion

11.1. Licensee is encouraged to publicly report its use of the Software, e.g. in press releases, annual reports or environmental reports concerning its organization.

11.2. To this end, BAS hereby grants Licensee a non-exclusive, non-transferable, non-sublicensable and revocable license under its trademark(s) and copyrights concerning the name “Bas Software” and the associated logos as made available on the BAS website as indicated in the Commercial Terms or specifically provided by BAS. However, Licensee must use the name and logos in an unmodified form and Licensee must adhere to any specific rules given by BAS, which rules are generally available on the BAS website.

11.3. Licensee may not create any false or misleading impressions regarding its affiliation with BAS.

11.4. Licensee may not register or apply for any trademarks or Internet domain names that contain the name “BAS Software” or any confusingly similar designation. BAS is entitled to demand transfer of any such trademarks or domain names by Licensee to BAS.

11.5. In light of the promotion of the Software, BAS is entitled to use Licensee’s name and logo in promotional material regarding the Software, unless Licensee can demonstrate a serious and material business reason against such use.

11.6. The license of this article terminates automatically upon termination or expiry of this Agreement, regardless of reason.

12. Assignment

12.1. The Agreement shall not be assigned or otherwise transferred by Licensee without the prior written consent of BAS, which shall not be unreasonably withheld. Any such assignment without consent will be null and void.

12.2. The Licensee accepts that BAS may transfer and assign the Licence (entirely or partially) and the performance of all or some of BAS’s rights and obligations of the Agreement to a third party at any time without the prior Written consent of the Licensee.

13. Warranty

13.1. The Software is provided “as is” and only guarantees that the Software has been developed and made available in accordance with the applicable standards in the IT-sector. This article should be seen in direct connection with article 6.2.

13.2. In case BAS performs any Data Migration, this is done at the expense and risk of Licensee. Since the format of data offered for migration is in general very variable, no representation or guarantee is made regarding the quality and accuracy of such Data Migration.

13.3. The Licensee acknowledges having been fully informed of the characteristics of the current status of the Software and declares that BAS has completely fulfilled its duty of informing the Licensee with respect to the Software and its functionalities.

13.4. The Licensee acknowledges and agrees that the Software is provided by BAS with no other guarantees or obligations than those provided in the Agreement.

13.5. The foregoing warranties are in lieu of all other warranties, expressed or implied, including but not limited to, implied warranties of fitness for a particular purpose and warranties of merchantability. Excepting the warranty expressly acknowledged hereunder and to the fullest extent permitted by law, BAS hereby disclaims and licensee hereby waives all other warranties, express or implied, including but not limited to all implied warranties of fitness for a particular purpose and all implied warranties of merchantability.

14. Limitation of liability

14.1. To the extent permitted under the applicable law, BAS shall not be liable for any loss, damage or fines imposed by regulatory bodies as a result of or relating to the Software, including but not limited to loss of data, income, profit, or other economic advantages. Moreover, under no circumstances shall BAS be liable for indirect, incidental or consequential damage arising as a result of the use of the Software, including but not limited to the unavailability of the Software.

14.2. In any event, the maximum liability of BAS towards the Licensee on whatever account shall be limited to the total amount of all Licence Fees paid by the Licensee to BAS for the relevant Software giving rise to the liability during the course the year prior to the claim or the amount of EUR 20.000,= (twenty thousand), the lower of these amounts always determining the limit on liability.

14.3. No liability shall exist for damages or fines that have not been reported to BAS in Writing within thirty (30) days of their occurrence, or for damages where Licensee failed to take appropriate measures to limit such damages.

15. Confidentiality

15.1. BAS and the Licensee will not disclose to third parties any information that comes to their attention under the Agreement and that is confidential or should be considered confidential under the circumstances, both during and after the termination or expiration of the Agreement, for as long as the confidential information has a confidential status, with a minimum of five years after termination or expiry of the agreement.

15.2. The receiving Party will observe all reasonably viable security measures, duties of care and guarantees to guarantee the confidentiality and secrecy of the confidential information.

15.3. Confidential information shall not include any information: (i) that is now in the public domain or subsequently enters the public domain through no fault, or omission on the part, of the receiving Party; (ii) that is presently legally in the possession of receiving Party, without restriction as to confidentiality or use, as evidenced by its competent written records; or (iii) that is lawfully received by receiving Party without restriction as to confidentiality or use, from a third party lawfully entitled to possession of such confidential information and who does not violate any contractual, legal or fiduciary obligation to disclosing Party by providing such confidential information to receiving Party.

16. Force majeure

16.1. If Licensee or BAS is unable to satisfy its obligations under the Agreement as a result of force majeure, the party concerned shall not be liable for any delays or shortcomings in the performance of the obligations, nor for any damage arising from this for the other party, provided that he (i) informs the other party as quickly as possible after the occurrence by registered letter of the nature and causes of this unforeseeable situation beyond his control, and (ii) does his best to undo such causes of non-performance as quickly as possible, and (iii) carefully continues performance as soon as the causes of the force majeure have been eliminated.

16.2. All causes that are beyond the reasonable control of BAS or the Licensee, including but not limited to fire, explosions, power failures, earthquakes, floods, very severe storms, strikes, embargos, labour disputes, acts by the civil or military authorities, (cyber) terrorism, pandemic, natural disasters, acts or neglect of internet traffic services, acts or neglect of regulatory or government bodies shall be considered as force majeure.

17. Miscellaneous

17.1. Amendments to the Agreement can be agreed upon between Parties in Writing.

17.2. BAS reserves the right to adapt amend the Agreement at any time after the Term, with a prior given notice of two (2) months.

17.3. Articles 8 (Intellectual Property Rights), 14 (Liability), 15 (Confidentiality), and 18 (Applicable Law) and all other parts of the Agreement that by their nature are ought to survive the termination of the agreement remain applicable after termination of this Agreement.

17.4. The fact that a party does not exercise any right or does not use any legal remedy does not constitute a waiver of that right or remedy.

17.5. This Agreement constitutes the entire agreement between the parties and supersedes any and all previous representations, understandings, discussions, or agreements between Licensee and BAS as to the subject matter hereof.

17.6. The section headings in this Agreement are for convenience only and shall not be used in construing or interpreting any of its terms.

17.7. In the event that any of the provisions of the Agreement shall be found to be illegal, invalid, or unenforceable, the remaining provisions of the Agreement shall remain valid, enforceable and in full effect. Moreover, in the event of the nullity, invalidity or unenforceability of one or more provisions of the Agreement, the Licensee and BAS undertake to negotiate in good faith in order to replace the provision concerned with a valid and enforceable provision that bears the closest resemblance to the intentions of the Agreement.

18. Applicable law and jurisdiction

18.1. The Agreement shall be solely governed (in form and substance) by and construed in accordance with the laws of the Netherlands.

18.2. Disputes arising from this Agreement shall be submitted to the competent court of the court Oost-Brabant (“rechtbank Oost-Brabant”) location ‘s-Hertogenbosch (“locatie ‘s-Hertogenbosch”), the Netherlands.

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